Elliott v. ACCVB of NYS
DECISION AND ORDER accepting and adopting # 10 Magistrate Judge Stewart's Report and Recommendation in its entirety. Plaintiff's complaint is dismissed. Signed by Chief Judge Glenn T. Suddaby on 12/1/17. (lmw) (Copy served upon plaintiff via regular and certified mail)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
REVEREND DONALD W. ELLIOTT,
ACCVB OF NYS, Michelle Venrard, CEO,
REVEREND DONALD W. ELLIOTT
Plaintiff, Pro Se
13 Ridge Lane
East Berne, New York 12059
GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this pro se civil rights action filed by Reverend Donald W.
Elliott (“Plaintiff”) against ACCVB of NYS (“Defendant”), is U.S. Magistrate Judge Daniel J.
Stewart’s Report-Recommendation recommending that Plaintiff’s Complaint be dismissed for
failure to timely serve Defendant in violation of Fed. R. Civ. P. Rule 4 and for failure to
prosecute this matter pursuant to Fed. R. Civ. P. 41(b). (Dkt. No. 10.) Plaintiff has not filed an
objection to the Report-Recommendation and the deadline in which to do so has expired. (See
generally Docket Sheet.) For the reasons set forth below, the Report-Recommendation is
adopted in its entirety and Plaintiff’s Complaint is dismissed.
When, as here, no objection is made to a report-recommendation, the Court subjects that
report-recommendation to only a clear error review. Fed. R. Civ. P. 72(b), Advisory Committee
Notes: 1983 Addition. When performing such a “clear error” review, “the court need only
satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.” Id.: see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1
(S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a
magistrate judge’s] report to which no specific objection is made, so long as those sections are
not facially erroneous.”) (internal quotation marks and citations omitted).
Based upon a review of this matter, the Court can find no clear error in the ReportRecommendation: Magistrate Judge Stewart employed the proper standards, accurately recited
the facts, and reasonably applied the law to those facts. As a result, the Court accepts and adopts
the Report-Recommendation for the reasons stated therein. (Dkt. No. 10.) To those reasons, the
Court adds only the following analysis.
The Second Circuit has identified five factors that it considers when reviewing a district
court’s order to dismiss an action for failure to prosecute (or failure to obey a court order) under
Fed. R. Civ. P. 41(b):
(1) the duration of the plaintiff’s failures, (2) whether plaintiff had
received notice that further delays would result in dismissal, (3)
whether the defendant is likely to be prejudiced by further delay, (4)
whether the district judge has taken care to strike the balance between
alleviating court calendar congestion and protecting a party’s right to
due process and a fair chance to be heard and (5) whether the judge
has adequately assessed the efficacy of lesser sanctions.
Hevner v. Village East Towers, Inc., No. 07-5608, 2008 WL 4280070, at *1-2 (2d Cir. Sept. 18,
2008) [citation omitted].
Applying these five factors, the Court finds that the duration of Plaintiff's failure is more
than six months, having begun on or about May 28, 2017 (i.e., 60 days from the filing of his
Complaint on March 29, 2017). Generally, durations of such time are sufficient to weigh in
favor of dismissal. See N.D.N.Y. L.R. 41.2(a) (“[P]laintiff’s failure to take action for four (4)
months shall be presumptive evidence of lack of prosecution.”); Georgiadis v. First Boston
Corp., 167 F.R.D. 24, 25 (S.D.N.Y. 1996) (finding delay of four months sufficient).
Plaintiff clearly received adequate notice that the failure in question would result in
dismissal of his action. On March 29, 2017, Plaintiff was provided with a courtesy copy of the
Court’s Local Rules of Practice and Pro Se Handbook (both of which advised him of his duty to
diligently prosecute this action). (Dkt. No. 3.) Moreover, on May 5, 2017, Magistrate Judge
Stewart reminded Plaintiff of his obligation to timely serve his Complaint. (Dkt. No. 7.)
The prejudice posed to Defendant by Plaintiff's failure is exacerbated by the duration of
time that has elapsed since the events giving rise to Plaintiff’s claims (which appear to be based
on events occurring since 1999). (Dkt. No. 1.) Under the circumstances, a further delay may
well affect witnesses' memories, the ability to locate witnesses, and the preservation of evidence.
See Geordiadis, 167 F.R.D. at 25 (“The passage of time always threatens difficulty as memories
fade. Given the age of this case, that problem probably is severe already. The additional delay
that plaintiff has caused here can only make matters worse.”).
Furthermore, the need to alleviate congestion on the Court’s docket outweighs Plaintiff’s
right to receive a further chance to be heard in this case.
Finally, the Court has carefully considered less drastic sanctions and has found them to
be inadequate under the circumstances. For example, the Court finds that any Order issued by
the Court admonishing Plaintiff for his dilatory conduct would not motivate him to act (given the
fact that never objected to the Report-Recommendation despite receiving an extension of time in
which to do so).
For all of these reasons, the Report-Recommendation is accepted and adopted in its
ACCORDINGLY, it is
ORDERED that Magistrate Judge Stewart’s Report-Recommendation (Dkt. No. 10) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED in its entirety.
Dated: December 1, 2017
Syracuse, New York
HON. GLENN T. SUDDABY
United States District Judge
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